York v. Clemens , 41 Iowa 95 ( 1875 )

Beck, J. —

I. The plaintiff introduced evidence tending to support the allegations of fxict contained in the petition, which, at the time, was objected to on the ground that a trust and the sale of lands were sought to be established by parol evidence.

The axnended petition was also assailed.by a motion in ari'est of judgment, on the ground that plaintiff seeks to recover under an express ti’ust which is not evidenced by writing, the defendant appearing to hold the title of the land for the use and benefit of plaintiff, whose interest therein is not shown by written instrument as required by the statute of frauds.

The character of the transactions set out in the petition and the rights of plaintiff thereunder, it becomes our duty to determine. The petition alleges that plaintiff and defendant became partners in the business of mining coal; that certain land was the property of the firm; that the firm was dissolved, and its business settled by a parol agreement, whereby plaintiff was entitled to receive a certain sum; that this sum was equal to a certain portion of the land, which defendant agreed to sell to another who had entered into the same business with defendant, and pay the proceeds to plaintiff, and that the contract was carried out and performed by plaintiff and also by defendant, except his failure to pay over the proceeds of the land, or the sum to which plaintiff was entitled, to him.

The allegations of the petition as to the history of the formation of the partnership, and the purchase of the land which became partnership property, are mere surplusage and show nothing inconsistent with the allegations just stated.

i pahtxkkfirtioVifovT-" dence. A contract of partnership need not be in writing, nor is an agreement for the dissolution and settlement of a partnership required to be witnessed in that way. Upon an agreement of that character is this action based, The doctrine of trusts and the statute of frauds have nothing to do with it, and it may be established by parol evidence. The petition alleges that plaintiff’s interest in the firm property was found by agreement to be $2,800, equal to the value of one-third of the land, which, under the contract for dissolution, was to be sold by defendant and the proceeds paid to plaintiff; that it was sold under the agreement for the sum named, and that defendant has failed to pay, as he is bound by his contract. This contract is a very simple one, and of a character very common among business men. It requires, indeed, very great ingenuity to bear it among the mists of express and resulting trusts and the statute of frauds.

2.-: evidence: ownership of land, The legal title of lands belonging to a firm may be held by one partner. Story on Part., (6 ed.,) p. 148, § 98 and note.

And if a partnership is found to exist, it may be . . .. ,, , .. , shown by parol evidence that its property consists of land. Lindley on Partnership, 121. So it was competent to prove by parol, that the land described in the petition was partnership property. Story’s Part., (6 ed.,) p. 155, § 93 and note. Rut defendant was bound by the agreement, settling and dissolving the partnership, to pay plaintiff the value of one-third of the land which was fixed by the parties at $2,800, and that interest in the real estate was actually sold for the sum mentioned. In order to entitle plaintiff to recover under the contract, it was not necessary to inquire into the title of the land. Defendant was estopped by his agreement to raise any question as to the title of the property, with a view to release himself from his obligation.

3. practice • cóurtfcontinuanca. II. It is insisted that the court erred in refusing to continue the case upon defendant’s request,' based upon surprise wrought by the filing of the amended petition, We do not think there was an abuse of discretion in £]ie ru]jng 0f the court refusing the continuance. The cause of action, as shown in the original petition, is the same as that set up in the amendment. The language and terms used to set it out differ. Plaintiff alleges in the first that he is entitled to a third interest in all the land, which interest was sold by defendant and the proceeds used by him, which he refuses to pay, etc. At all events, defendant fails to show that he suffered any prejudice from the trial having been proceeded with after the amendment; that he had not information of all the evidence required to make his defense, that his witnesses were not all present or the like. We will not presume prejudice, in the absence of any showing that it was probably suffered by the party comjfiaining.

_. ex. ceptions. III. Defendant, after the amended petition was filed, orally requested the court to change the cause to the chancery docket. This was refused and defendant now complains of the court's action in this matter. We cannot review it, no exceptions having been taken thereto in the court below. The error, if any there be in the ruling of the court, was waived by the failure to except. Code, § 2519.

IY. Certain instructions given to the jury are complained of as erroneous. They are in harmony with the principles upon which this opinion is based, and recognize the right of plaintiff to recover under the facts alleged in the petition, and announce certain familiar rules of law for the guidance of the jury. They demand no further attention.

5. practice in Court^costs? Y. Notwithstanding all questions as to the sufficiency of the evidence to sustain the verdict were expressly waived, the appellant has printed a full abstract of the evidence, and discusses it at considerable length, with a view to establish the proposition that the verdict should have been the other way. And counsel for plaintiff, while they insist that the sufficiency of the evidence is not before the court, and rely upon an agreement of the other side not to present the question, occupy many pages of their printed argument with quite an elaborate • discussion of the evidence. It is hardly necessary to remind counsel of. the familiar rules of the law and practice of this court, which render useless such ■discussion. It is not only useless, but, by unnecessarily consuming our time, detrimental to the prompt dispatch of the business of the court.. We cannot permit counsel to indulge in such practice.

Fifteen pages of plaintiff’s argument will be deducted from the whole number, in taxing the costs for printing to which he is entitled. We cannot visit alike penalty upon defendant, as he will be required to pay his own costs by the final judgment of this court. But we will remind counsel that hereafter for such transgressions, proper penalties, other than in the nature of costs, will be imposed, upon the recurrence of such violations of the rules and practice of this court.

Affirmed.